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Evidence of Prior Professional Discipline in a Maine Medical Negligence Case

dental-mirror-809184-m.jpgIt can be difficult for a patient who is injured at the hands of a healthcare provider to learn that the provider has a history of behavior that has not been up to professional standards. But can you bring in evidence of disciplinary action taken against a health care provider when suing for negligence in Maine? A 2011 case arose that addressed this question.

In the case, a Maine oral surgeon treated a woman in 2002. Her tooth was removed and she needed to get a partial denture.

She was referred to the oral surgeon. The referral document mentioned pain and swelling. Upon examination, the oral surgeon stated he thought it was an infection and gave her antibiotics. When she came back 11 days later, she had new symptoms. Her gums had a different texture.

The oral surgeon advised her he needed to conduct a biopsy of that location. The woman signed a consent form to have the biopsy done. She later claimed the oral surgeon told her that the risks set forth in the consent form didn’t apply to her situation.

The woman found the biopsy terrifying. Afterward, she suffered from swelling and pain. She went to see a doctor who said there was nothing unusual about the site, but a neurologist later testified she had an injury to her infraorbital nerve, which branched from beneath her left eye to her lip.

The woman filed a claim against the oral surgeon. The oral surgeon testified he couldn’t remember the specific procedure, although he could testify as to his notes relating to it.

A medical malpractice prelitigation screening panel heard the claim and found that the oral surgeon had not deviated from the applicable standards of care. It found his biopsy was not a proximate cause of the injuries.

The woman filed a suit against the oral surgeon and his business, alleging negligence and failure to obtain informed consent. Before trial, the oral surgeon asked the court to exclude evidence regarding a prior disciplinary action and subsequent consent agreement. Several complaints had been filed against him with the Board of Dental Examiners. The consent agreement admitted various wrongdoing, including removal of teeth not expected to be removed, failing to document procedures and permitting assistants to engage in the unlicensed practice of dentistry.

The court excluded the disciplinary action evidence in the plaintiff’s case, but did permit the evidence to be used to impeach the oral surgeon on issues of habit or practice. The court explained this evidence could be used to rebut the oral surgeon’s claim about what course of conduct he typically followed. The oral surgeon also asked that habit evidence be excluded, but the court denied this motion.

The jury trial lasted seven days. The plaintiff objected to how an instruction about the screening panel was worded. She also objected to the defense leaving the screening panel decree enlarged on a projector for the jury to view when discussing the verdict form. The court ordered the defense not to leave the enlargement there and instructed the parties’ attorney that they could not comment on panel findings outside a particular scope.However, the defense attorney exceeded the scope, discussing the screening panel decision as evidence. The plaintiff moved for a mistrial. The court denied the motion.

The jury found no negligence by the oral surgeon. The plaintiff asked for a new trial. The court denied this motion, too. She appealed.

Among other arguments on appeal, the plaintiff argued that she should have been able to present the evidence of prior disciplinary action against the oral surgeon. She claimed it was not offered to show conformity with prior wrongful acts (which is prohibited), but (1) to impeach by showing bias and lack of credibility; (2) for the admissions it contained; (3) to show absence of mistake or motive, and (4) to rebut the oral surgeon’s evidence of habits. She argued that the oral surgeon had motive to deny negligence in this case because his license would have been at risk.

The appellate court explained that the plaintiff’s own self-serving bias showed in this argument. The oral surgeon’s prior statements to the dental board were not admissions relevant to this particular case, but related to third parties. The appellate court also explained that it did not show motive or absence of mistake. Also, the trial court had expressly ruled that if habit evidence came up in evidence during trial that could be rebutted through the disciplinary action evidence, the trial court would reconsider the ruling.

The appellate court explained that, because the prejudicial effect of this evidence outweighed its probative value, it was fair for the court to exclude the disciplinary action as evidence in the plaintiff’s case.

The appellate court explained that portions of this evidence could have become admissible if the plaintiff had elicited testimony showing the oral surgeon continued to routinely perform an action for which he’d been disciplined.

Although uses of prior professional discipline are limited at trial, a skillful trial attorney can hire investigators and work up a case using other strategies to give the jury a full picture of any negligent medical treatment you received. If you or your loved one has been harmed by a negligent doctor, ask an attorney with medical malpractice experience for help.

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